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passe 1 from the fifth to the tenth century; such was the progression of facts from the conquest to the complete establishment of feudalism.
I think this system is alike controverted by historical testimonies and by moral probabilities. And first, how can we conceive to ourselves the absolute, arbitrary revocability of benefices. In the expression alone, there is something repugnant to the very nature of human relations. Unless those relations be the work of force, as is the case between master and slave, the prisoner of war and the conqueror, it is not probable, it is not possible, that all the advantage, all the right should belong to only one of the interested parties. How could a free man, a warrior, who voluntarily united himself to a chief, have subjected himself to this condition, that the chief inight do as he pleased with regard to him, and, for example, take from him to-morrow, without motive, of his mere whim, the domain which he has given him to-day? In the voluntary relations of free creatures, whatever the inequality may be, there is always a certain reciprocity, certain mutual conditions; à priori, entire and arbitrary revocability, cannot have been, at any epoch, the legal and recognised state of benefices.
Historical testimonies agree with moral probabilities. Let us see in what terms Montesquieu describes the system, and upon what text he founds it :
" It cannot be doubted but that at first fiefs were revocable. We see in Gregory of Tours that there was taken from Sunegisile and Galloman, all which they held from the fisc, and that they had only left to them what they held in property.! Gontran, raising his nephew Childebert to the throne, had a secret conference with him, and pointed out to him those to whom he should give fiefs and those from whom he should take them away.2 In a formula of Marculf, the king gives in exchange, not only benefices which his son held, but also those which another had held. The law of the Lombards contradistinguishes benefices from property." Historians, formulæ, the codes of different barbarous nations, all the monuments which remain to us, are unanimoun. Lastly, those who wrote the Book of Fiefs,' inform us that at first the lords could withdraw them at will, then they were assured for a year, and afterwards they were given for
i L. ix., c. 38.
* L. i, t 80
· L. vii., c. 33.
With the exception of the last authority, that of the Book of Fiefs, of which I shall immediately speak, it is evident that all these texts prove a fact, and not a law, the actual, not the legal condition of benefices. Doubtless the king, or any giver of benefices who found himself more powerful than the receiver, took back his gifts when he felt the desire or need.
The instability, the violent struggle was incessant : but that it was the legal state of this kind of property, that the possessors of fiefs acknowledged the right of the givers to take them back when they pleased, there is no evidence to show On the contrary, we find the beneficiaries everywhere exclaiming against the iniquity of such spoliation, and maintaining that the benefices should only be taken from them when they, on their side, were wanting in the promised faith, when they had been unfaithful towards the patron of whom they held them. On condition of the fidelity of the beneficiary, the possession of the benefice should be stable and peacable: that is the law, the moral rule established in minds. I will select a few texts out of a hundred:
“Let all which has been given to a church, to the priests, or to any other person, by the munificence of the said princes of glorious memory, rest fixedly with them.”3
“ If any land be taken from any one, without fault on his part, let it be returned to him."4
“Charles the Great suffered no lord, from any impulse of anger, to withdraw his benefices from his vassal without reason.
“ We will that our faithful hold as settled that no person henceforward, of whatever rank or condition he be, shall be L. i., tit. 1.
2 Esprit des Lois, l. XXX., c. 16. • Baluze, Recueil des Capitulaires, vol. i., col. 8. Ordonnance of Clotaire, 1st or 2nd.
* Bal., vol. i., col. 14; Treaty of Andelot, in 387. • Vie de Charlemagne, by Eginhard.
robbed or despoiled of his benefices by our arbitrary will, CI by the artifice or unjust avidity of any other person without a just judgment dictated by equity and reason.”
With regard to the Book of Fiefs, drawn up at a far posterior epoch, from the twelfth to the thirteenth century, and by the jurisconsults of the time, it most probably committed the same error as Montesquieu : it converted the fact into a law.
The very first step, then, of that systematic progression which it is said the beneficiary property observed in its development, bears no inquiry. I pass to the second. Did it for some time assume the legal form of a concession with a fixed term, a kind of bailment or farming ?
Unless I am mistaken, there is something in the very nature of such a concession which is repugnant to a social state so irregular and violent as that of the times of which we speak. Contracts for a fixed term, for precise conditions, and of short duration, are delicate combinations, difficult to get observed, which can only be put in practice in advanced and well regulated societies, and where there exists a power capable of enforcing their execution. If we look closely into the civil life of barbaric nations, or nations bordering upon barbarism, if we run our eye over the Formulæ of Marculf, almost all the agreements which we find there are either of a prompt, immediate execution, or concluded for perpetuity, or at least for life. We find very few agreements for a limited time; such agreements are more complicated, and they would be deficient in guarantees. Guarantees also would have been wanting to temporary benefices; and, the term of concession arrived, the giver would have had great difficulty in regaining possession of his domain.
We however find, from the sixth to the ninth century, benefices which appear temporary. Their origin, I think, was this:
In the Roman legislation, the gratuitous concession of the usufruct of a property for a limited, and generally a short time, was called precarium. After the fall of the empire, the churches often leased out their properties for a fixed rent, by a contract also called precarium, the term of which
1 Capit. de Charles le Chauve, in 844, Bal., vol. ii., col. 3.
W95 commonly one year. In some instances, doubtless to insure the protection or divert the hostility of a neighbouring power, a church gratuitously conceded to him this temporary enjoyment of some domain. In some instances, also, the concessionary, availing himself of his power, did not pay the agreed rent, and yet retained the concession. Undoubtedly the use or abuse of these precaria, or temporary benefices of church property, were frequent enough; for, in the course of the seventh century, we find the kings and mayors of the palace employing their credit, or rather their authority, with the churches, to obtain usufructs of this kind for their clients: “At the recommendation of the illustrious Ebroin, mayor of the palace, the said John obtained from the monastery of St. Denis the domain called Taberniacum, by precarious
When Charles Martel seized a portion of the domains of the church to distribute them among his warriors, the church exclaimed against the sacrilege, the spoliation, and she had good right so to do. Pepin, become chief of the Franks, needed to reconcile himself with the church; she demanded her domains. But how to return them to her? It would be necessary to dispossess men of whom Pepin had even more need than he had of the church, and who would more efficaciously defend themselves. To extricate himself from this embarrassment, Pepin and his brother Carloman decreed the following capitulary:
“ With the consent of the servants of God and of the Christian people, and because of the wars which threaten us, and the attacks of nations which surround us, we have decided that, for the maintenance of our warriors, and with the help of the indulgence of God, we shall retain for some time, as precaria, and subject to the payment of a rent, a portion of the properties of the churches; on this condition, that each year there shall be paid to the proprietary church or monastery one solidus, that is to say, twelve deniers for each farm; and that if he who enjoys the said property die, the church shall re-enter into possession. If we are constrained to it by necessity and so order it, the precarium shall be renewed, and a second shall be drawn up. But let them heed that the churches or monasteries whowe properties shall be thus
Recueil des Historiens de France, vol. v., p. 701,
lent in precario do not suffer want: if that happens, let the church and the house of God be again put in full possession of their property.”!
Here you perceive between the church and the new possessors of her domains there is a kind of transference placed under the guarantee of the king. Pepin indeed, and his first successors, took much trouble to make it observed; their capitularies incessantly order men to pay the rent due to the churches, or to give up the domains, or to renew the precaria. Most of these domains, as you may suppose, were never given up, and the rent was very irregularly paid. Thence, however, arose temporary benefices, lands held for a fixed time, generally for five years. But this fact cannot be considered as a legal state of beneficiary property in general, as one of the degrees through which it passed. It is rather an accident, a special form of certain benefices; and a very unimportant form, for the conditions which it imposed were scarcely ever respected.
From being temporary, it is said, benefices became of life duration: this is their third degree. It is far more than a degree in their history — it is their veritable, primitive, habitual state, the common character of this kind of concession. It was thus willed by the very nature of the relations which benefices were destined to perpetuate. Before the invasion, when the Germans wandered upon the Roman frontiers, the relation between the chief and the companions was purely personal. The companion assuredly engaged neither his family nor his race; he engaged only himself. After the establishment, and when the Germans had passed from the wandering life to the state of proprietors, it still continued the same; the tie between the giver and the beneficiary was still considered personal and for life; the benefice must have been so too. Most of the documents of the epoch, in fact, expressly say as much, or take it for granted. I shall cite but a few texts of various dates, from the sixth to the ninth century; they will place the matter beyond doubt.
In 585, “ Wandelin, who had brought up the young king,
I Capit. du Roi Carloman, in 743; Bal., vol. i., col. 149.